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NATIONAL PARKS & CONSERVATION ASSN. v. HODEL

October 29, 1987

National Parks and Conservation Association, et al., Plaintiffs,
v.
Donald P. Hodel, et al., Defendants



The opinion of the court was delivered by: JOHNSON

 NORMA HOLLOWAY JOHNSON, UNITED STATES DISTRICT JUDGE

 Plaintiffs, The National Parks and Conservation Association ("NPCA") and five individuals who are members of the Committee for the Preservation of Daingerfield Island, bring this action against defendants, Secretary of the Interior ("the Secretary"), certain named officials of the National Park Service ("the Park Service"), and Guest Services, Inc. ("GSI"). The subject of the suit is the defendants' approval of the 1984 construction of the Potowmack Landing Restaurant and facility on Daingerfield Island in the George Washington National Parkway and the imposition of certain charges for boat slip rentals and marina services at the facility.

 In essence, plaintiffs claim that the Park Service and the Secretary violated the National Environmental Policy Act of 1969, as amended, ("NEPA"), 42 U.S.C. § 4332(B) and (C) by failing to do an environmental assessment of the project actually implemented; that the Secretary and GSI violated the Concessions Policy Act ("CPA"), 16 U.S.C. §§ 20 et seq., by constructing a facility that was not necessary to serve the park users nor proper for a national park site; and that the Park Service and GSI are charging unreasonable rates for both the marina facilities and for submetering of electricity to certain wet slip lessees contrary to law and contract. Plaintiffs request that the court enjoin defendants from operating the facility until NEPA and the CPA are complied with and reasonable rates are established.

 Presently before the Court are the parties' cross-motions for summary judgment. For the reasons stated below, the Court concludes that plaintiffs have unreasonably delayed in asserting their claims in this case and to allow them to go forward at this late date would substantially prejudice the defendants. Accordingly, without reaching the merits of the NEPA and CPA claims, the Court, in exercise of its equity jurisdiction, finds that plaintiffs' NEPA and CPA claims are barred by laches. As to plaintiffs' claim arising from the marina slip rates, the Court declines to find a private right of action under the CPA, nor does it find plaintiffs to be an intended third party beneficiary to the contract, thus this claim must also be dismissed. As to plaintiffs' claim arising from the submetering electrical charges, in light of the reduction of that rate to its prior unchallenged level, the Court finds that the claim is in part moot. The remaining portion of the claim, which requests a refund for past overcharges must fail because the Virginia law upon which plaintiffs rely is not controlling. Plaintiffs' motion for summary judgment must be denied and defendants' cross motion for summary judgment must be granted.

 Factual Background

 Daingerfield Island, part of the National Park System, is a 107 acre area of river front land situated between the Potomac River and the George Washington Memorial Parkway, just south of National Airport in Alexandria, Virginia. The Washington Sailing Marina is located on the northern part of Daingerfield Island, along with several soccer fields, a parking lot, a portion of the bike path which runs for a number of miles along the banks of the Potomac, picnic grounds, and the multi-use facility known as the Potowmack Landing Restaurant. The majority of the land on Daingerfield Island remains undeveloped.

 The Potowmack Landing Restaurant and the adjoining portions of the building is approximately 15,000 square feet. The main area of the building is comprised primarily of a formal dining room, which seats 415, a small snack bar, a ward room containing a large bar area and in which there is also limited food service, a private party room, and a large outdoor deck with tables. An adjoining portion of the building houses a shop selling souvenirs, boating and cycling supplies.

 Prior to 1946, there existed a facility, which was erected in 1918 and was later moved to Daingerfield Island from its original site at 21st Street and Constitution Avenue, that housed the Wakefield Tea House and later a snack bar, until the construction of the present facility. In 1946, the National Capital Region of the Park Service contracted with GSI to operate the food service concession on Daingerfield Island.

 For at least fifteen years, the northern twenty five acres of Daingerfield Island contained a sailing marina, a food concession, parking lots, a picnic area and playing fields. The remainder of the area has remained in its natural state except for a tree farm and research center and several small storage areas. In 1964, GSI took over operation of the marina facilities as well.

 The Park Service entered into a new concession contract with GSI in 1972, which expires in December 1991. Under this contract, GSI is authorized to provide facilities and services to the public within park areas administered by the National Capital Region. In return, GSI has agreed to pay the Park Service a fixed annual fee for the use of government owned structures, plus a percentage of its gross receipts from operations. In addition, GSI agreed to undertake a building and improvement program of not less than one million dollars. GSI was granted the right to provide the specified services and to provide new or additional facilities and services as necessary and desirable for the accommodation and convenience of the public. Due to the age and deterioration of the old Wakefield Tea House building, the Park Service began planning for the improvement of the facilities on Daingerfield Island in 1975.

 As described in the administrative record, the planning process begins when Congress establishes the park's purpose. The Park Superintendent and staff set up goals and objectives consistent with congressional mandates, National Park Service Management Policy, and public needs. These objectives are defined and formalized by the Park Service, reviewed by the regional office, and provide the basis for a Task Directive - a contract between the park, the region, and the Park Service's planning, design, and construction center - to provide professional planning services.

 The first phase of the planning process for Daingerfield Island began with an exhaustive study of the Island and its users, called the "Basic Data for the Development Concept Plan and the Assessment of Alternatives." ("Basic Data"). Admin. Record at Tab 13. It is a detailed report on the physical, cultural, biological, and environmental systems of the Island.

 Upon completion of the Basic Data, the Park Service conducted several public workshops to discuss the formulation of plans for the future use of the Island. See "Summary of Public Workshops for Daingerfield Island Held on December 6 and 8, 1977" Admin. Record at Tab 14. The purpose of the workshop meetings was to identify planning issues with the involvement of members of the public. On the basis of information adduced in the Basic Data and at the workshops, the Park Service prepared an Environmental Assessment and Development Concept Plan for Daingerfield Island ("EA"). The EA was completed in May 1980. Five alternatives, each addressed to the entire Daingerfield Island area, were included in ...


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